New Law Will Protect Surviving Family Members

Please note: This blog post was originally published on Wednesday, October 21, 2009

On October 20, the Senate followed the House of Representatives in voting to protect surviving family members when either the petitioner or the principal beneficiary of a petition dies. President Obama is expected to sign this legislation shortly.  We link to the bill (H.R. 2892) from our Immigration Legislation page.

Presently, the law provides that when the petitioner or the principal beneficiary dies, so does the petition.  Typically, if the beneficiaries are present in the U.S., their applications for adjustment of status are denied and they are placed in removal proceedings.

There are few options for surviving relatives:

For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner’s death.

There is also a regulation which provides that, where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for “humanitarian” reasons.

WHO WILL BENEFIT FROM THE NEW LAW?

Not only does the new law eliminate the infamous “widow penalty”, it does so much more!

When either the petitioner or the principal beneficiary dies, in a wide variety of instances, the law acts to protect the surviving family members:

1. Parents, spouses and children of a U.S. citizen with pending or approved petitions;
2. Beneficiaries, principal or derivative, of pending or approved family-based petitions;
3. Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
4. Beneficiaries, principal or derivative, of pending or approved asylee/refugee relative petitions;
5. Nonimmigrants entitled to “T” (trafficking victims) or “U” (crime victims) status.

Since the waiting times for family-based and employment-based preference can range up to between five and 22 years, often petitioners and principal beneficiaries die before the beneficiaries of the petition can obtain permanent residence.

In explaining how the new law would operate, let’s use the following examples:

Example 1: Family-Based Petition

Ms. Santos’ sister, a citizen of the U.S., petitioned for her over 20 years ago. At that time, her children were four, two and one year of age.  Ms. Santos and her husband work as technicians in the U.S. By the time her priority date became current, her children were 24, 22 and 21.

The INS took two years to approve the visa petition. Since the length of time that the visa petition was pending can be subtracted from the age of her children under the Child Status Protection Act, the “immigration ages” of her children are 22, 20 and 19. Therefore, the youngest two are still considered to be children for purposes of adjustment of status, and the older child must wait for a final resolution of the proper interpretation of CSPA’s “automatic conversion” clause.

Ms. Santos, her husband, and her two youngest children all apply for adjustment of status under section 245(i). However, shortly before their interview takes place, her U.S. citizen sister dies.  Under current law, Ms. Santos’ only remedy would be to apply for “humanitarian” reinstatement of her petition from the USCIS, an “iffy” proposition.

Under the new law, she and her family (except possibly her oldest child) would be protected as “survivors” and would be allowed to continue with their applications for adjustment of status despite the death of her sister.

Assuming that Ms. Santos and her family members are all eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval “is not in the public interest”.

Also, since Ms. Santos’ sister has died, another sponsor for an affidavit of support is needed.

Example 2: Same Scenario as Above, but Ms. Santos and her Family are Abroad

If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS. The family’s only recourse is to request a reinstatement of the visa petition on “humanitarian” grounds.

Example 3: Same Scenario as Above, but Ms. Santos, not her Sister, Dies

If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this “is not in the public interest”. Her husband and the youngest two children can adjust their status to permanent residents.

This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them under removal proceedings.

Is there any remedy for the family under this scenario if Ms. Santos’ family had remained abroad? Unfortunately, the answer to this question is “no”.

Example 4: Employment-Based Petition

Dr. Kumar is a physician born in India. His wife and daughter reside with him in the U.S. He is in H-1B status. His wife and daughter are in H-4 status. Dr. Kumar completed his medical residency in the U.S. on a J-1 visa. Then, for three years, he worked in a medically-underserved area in H-1B status.

In 2006, his employer submitted a PERM application on his behalf. It was approved in the Spring of 2007. In July 2007, when all the employment-based numbers became current, Dr. Kumar’s employer submitted an EB-2 visa petition on his behalf. Simultaneously, Dr. Kumar, his wife, and their daughter all applied for adjustment of status. Then his priority date retrogressed.

In 2009, Dr. Kumar was killed by a drunk driver. Under present law, the visa petition would be revoked. Under the new law, Dr. Kumar’s wife and daughter would be permitted to continue with their applications to adjust status. The visa petition could only be revoked if the USCIS determined that its continued approval would not be “in the public interest”.

ELIMINATION OF THE “WIDOW PENALTY”

What follows is some advice for surviving spouses and children under the portion of the new law which relates to widows of U.S. citizens and their children:

How Can I Benefit from the New Law?

Under the new law, all surviving spouses can apply for themselves and their children for green cards.  The new law eliminates the two-year marriage requirement for self-petitions.

If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.

If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.

In either case, it is incumbent upon you to submit the I-360 within two years of the law’s passage, and to demonstrate that the marriage was bona fide.  Include wedding photos, proof of joint assets, etc.

If your spouse dies more than two years after the law’s enactment, your I-360 must be submitted within two years of your spouse’s death.

There is no affidavit of support required. However, you must demonstrate to the government that you are not likely to become a public charge.

Also, if you remarry, you will lose your eligibility.

How Can My Children Benefit from the New Law?

Your unmarried children may be included in your I-360 self-petition.

Remember that although the law defines “children” as unmarried and under 21 years of age, the Child Status Protection Act (CSPA) may allow your child’s age to be “frozen”.  As a general rule, if the I-130 or I-360 petition was submitted prior to your child’s 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

For more information about CSPA, see our Child Status Protection Act FAQ.

CONCLUSION

The new law will provide immigration benefits to “survivors” in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents.

However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.